Citation Nr: 0510627
Decision Date: 04/13/05 Archive Date: 04/21/05
DOCKET NO. 02-17 605 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to an increased rating for service-connected
bilateral pes planus, now rated 10 percent disabling.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Panayotis Lambrakopoulos, Counsel
INTRODUCTION
The veteran served on active duty from February 1987 to March
1990, with additional service on active duty for training
from October 1984 to April 1985.
This appeal arises before the Board of Veterans' Appeals
(Board) from a July 2002 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Roanoke,
Virginia, that denied a claim for an increased rating for
service-connected bilateral pes planus (rated 10 percent
disabling). The veteran testified before the Board at a
hearing held in Washington, D.C., in March 2004. In July
2004, the Board remanded the case for additional development,
and the case is now again before the Board for further review
on appeal.
FINDINGS OF FACT
1. All requisite notices and assistance owed to the veteran
have been provided, and all evidence necessary for an
equitable disposition of the claim has been obtained.
2. The veteran's bilateral pes planus is not manifested by
objective evidence of marked deformity (pronation, abduction,
etc.), pain on manipulation and use accentuated, indication
of swelling on use, or characteristic callosities.
CONCLUSION OF LAW
The criteria for an increase in a 10 percent rating for
bilateral pes planus are not met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection and a 10 percent rating have been in
effect for bilateral pes planus since March 1990. The
veteran seeks an increased rating. She contends that her
feet constantly ache and are constantly swollen. She also
states that they throb and cause discomfort, rendering her
unable to walk or run long distances, to play basketball, to
ride a bicycle, or to wear heeled shoes for significant
length of time.
A claim must be viewed in light of the entire relevant
medical history. See 38 C.F.R. §§ 4.1, 4.41; Peyton v.
Derwinski, 1 Vet. App. 282, 287 (1991).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic
codes identify the various disabilities. 38 C.F.R. Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. Since the issues in this case
are entitlement to an increased rating, the present level of
the disability is the primary concern. Francisco v. Brown,
7 Vet. App. 55, 58 (1994).
A 10 percent rating is warranted for moderate bilateral
flatfoot (pes planus), with the weight-bearing line over or
medial to the great toe, inward bowing of the tendo Achilles,
pain on manipulation and use of the feet. A 30 percent
rating requires severe bilateral flatfoot, with objective
evidence of marked deformity (pronation, abduction, etc.),
pain on manipulation and use accentuated, indication of
swelling on use, characteristic callosities; a 20 percent
rating would be warranted if these symptoms were unilateral.
38 C.F.R. § 4.71a, Diagnostic Code 5276. These criteria have
been in effect during the entire pendency of the veteran's
claim.
According to two letters, dated in 1996, from a private
treating doctor, John Pace, M.D., the veteran had been
complaining of foot pain that was worse on extended standing.
Her chronic flat feet and plantar fasciitis warranted
bilateral arch supports and limited standing. The doctor
encouraged the veteran to sit for several minutes for every
15 minutes of standing duty; he also wrote that the foot
condition made wearing dress boots intolerable.
At the March 2004 hearing before the Board, the veteran
testified that walking about two blocks causes pain on the
bottoms of his feet and that the skin on the sides of the big
toes has calluses. The veteran also stated that she had
difficulty standing due to pain.
The VA has afforded the veteran two examinations (in May 2001
and August 2004) to assess the bilateral pes planus.
On the May 2001 examination conducted for the VA, the veteran
reported pain at rest, on standing, and on walking. She also
described weakness, swelling, heat, redness, aching, and
throbbing. She reported intermittent flare-ups that were
distressing; they occurred monthly and lasted for at least
two days. Her symptoms were exacerbated by standing, walking
for long periods of time, or engaging in any athletic
activities. She had been taking Ibuprofen and wrapping her
feet with special wraps. On actual examination, the
veteran's posture was normal; her gait was also normal, and
she had no limitation of standing or walking. Her feet
showed no signs of abnormal wear, calluses, or breakdown.
She wore corrective shoes and inserts. She had bilateral
flatfeet. However, her non-weightbearing and weightbearing
alignments of the Achilles tendons were good. Examination
revealed no painful motion, edema, instability, or weakness.
There were no skin or vascular changes. She did not have
hallux valgus. Reflexes, motor function, and sensory
function were normal in the lower extremities; she did not
have muscle atrophy. X-rays confirmed bilateral pes planus.
The diagnosis was acquired bilateral flat feet.
On the August 2004 VA examination, the veteran reported pain
in both feet, aggravated by prolonged standing, walking,
running, and jogging. She denied any hospitalization or
surgery for the pes planus; she was not taking medication.
She also reported that she had not missed any work in the
last year because of her pes planus. She described walking
every evening for 30 minutes; she also described running
after children. Four months ago, a VA clinic had provided
her with orthotics. On the examination, the veteran walked
briskly in the hallway, without assistive device; her gait
and posture were normal. She could walk on her heels and
toes. There was no hind foot valgus deformity, tendo
Achilles tightening, callosity, hallux valgus, or hammertoe
deformity of either foot. She had flexible pes planus of the
right foot on standing position, as well as a mild formation
of arch. There was no tenderness or pain on manipulation of
the feet. Also, there was no tenderness on the plantar
aspect of feet or at the heels. Circulation sensation was
intact. There was no uneven wear of shoes. It was noted
that the veteran was currently using shoe inserts. The
diagnosis was bilateral flexible pes planus. The examiner
commented that the veteran had limitation in prolonged
standing, walking, running, and jogging due to chronic
bilateral discomfort. However, there was no evidence of
further limitation due to further loss of motion,
incoordination, weakness, or flare-up. There was no
documentation of incapacitation during flare-ups. The
examiner stated that the veteran's bilateral pes planus had
no adverse impact on her present usual occupation or daily
activities. She also noted that the veteran had not been
absent from work in the last year because of her pes planus.
The medical evidence shows that the veteran's bilateral pes
planus is not severe. There is no objective evidence of
marked deformity (pronation, abduction, etc.), of pain on
manipulation and use accentuated, of indication of swelling
on use, or of characteristic callosities. Indeed, the
examinations have found no significant limitation of function
due to the veteran's bilateral pes planus. The record shows
that she walks 30 minutes every evening. Limitations have
included restrictions on standing or walking for prolonged
periods and inability to wear dress boots or heeled shoes.
But, as the examiner commented on the 2004 VA examination,
the veteran's bilateral pes planus has no adverse impact on
her present usual occupation or daily activities. The Board
has considered the veteran's testimony and statements, as
well as the 1996 letters from a private doctor. However, the
objective evidence does not meet the criteria for an
increased rating under DC 5276.
In sum, the weight of the credible evidence demonstrates that
the veteran's bilateral pes planus warrants no more than a 10
percent rating. As the preponderance of the evidence is
against the veteran's claim for an increased rating, the
"benefit-of-the-doubt" rule is not for application, and the
claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990).
Veterans Claims Assistance Act of 2000
The Board has also considered if the VA has complied with the
Veterans Claims Assistance Act of 2000 (VCAA), codified at
38 U.S.C.A. §§ 5103 & 5107 (West 2002), which was signed into
law on November 9, 2000, and its implementing regulations.
38 C.F.R. § 3.159 (2004). These changes enhanced the
notification and assistance duties of the VA to claimants.
Recently, in Pelegrini v. Principi, 18 Vet. App. 112 (2004),
the United States Court of Appeals for Veterans Claims
(Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) (2004) apply to cases pending before VA on
November 9, 2000, even if the initial agency of original
jurisdiction decision was issued before that date; and (2)
that a claimant must be given notice in accordance with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) before an
initial unfavorable decision is issued. Section 3(a) of the
VCAA (also 38 U.S.C.A. § 5103(a)) and 38 C.F.R. § 3.159(b)(1)
require that, upon receipt of a complete or substantially
complete application, the VA must notify the claimant and any
representative of any information and any medical or lay
evidence not previously provided to the VA that is necessary
to substantiate the claim; this notice requires the VA to
indicate which portion of that information and evidence is to
be provided by the claimant and which portion the VA will
attempt to obtain on the claimant's behalf.
In Pelegrini, the Court appears to have held, in part, that a
VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant 's
possession that pertains to the claim, or something to the
effect that the claimant should "give us everything you've
got pertaining to your claim(s)." The Court stated that
this new "fourth element" of the notice requirement comes
from the language of 38 C.F.R. § 3.159(b)(1).
In this case, the initial unfavorable decision was made in
July 2002, that is, after the date of the VCAA's enactment on
November 9, 2000. However, even under Pelegrini, the notices
regarding the veteran's claim informed her of the bases for
the relevant decisions, what types of evidence would be
needed, and how the evidence would be secured. The Board
also concludes that any defect that may exist with regard to
the timing of the VCAA notice to the veteran was harmless
because of the extensive, thorough, and informative notices
provided to her throughout the adjudication of the claim.
The VA has informed the veteran of all applicable laws and
regulations, what types of evidence are needed to support her
claim, who is responsible for securing items, and the need
for any other evidence that the veteran may have in her
possession.
Moreover, the VA's thorough notices of all matters required
by the VCAA and its regulatory progeny throughout this
adjudication have cured any defects involving notice of the
provisions of the VCAA or the timing of such notice. The RO
sent the veteran correspondence in May 2003 and July 2004; a
statement of the case in September 2002; and a supplemental
statement of the case in January 2005. The correspondence
and adjudicative documents also discussed specific evidence
and the particular legal requirements applicable to the
veteran's claim. Taken together, all of these documents
discussed the evidence considered and the pertinent laws and
regulations, including provisions of the VCAA and the reasons
for the RO's decision. There can be no harm to the veteran,
as the VA has made all efforts to notify and to assist the
veteran with regard to the evidence obtained, the evidence
needed, the responsibilities of the parties in obtaining the
evidence, and the more general notice of the need for any
evidence in the veteran's possession. Thus, the VA has
satisfied its "duty to notify" the veteran.
In addition, the VA has obtained all relevant evidence and
has afforded the veteran several examinations in connection
with her claim. Thus, the VA has complied with all duties to
assist the veteran in securing relevant evidence.
Moreover, the Court has concluded that the VCAA is not
applicable where the appellant was fully notified and aware
of the type of evidence required to substantiate his claims
and that no additional assistance would aid in further
developing his claims. Dela Cruz v. Principi, 15 Vet. App.
143, 149 (2001). When, as here, there is extensive factual
development in a case, and there is no reasonable possibility
that any further assistance would aid the claimant in
substantiating a claim, the VCAA does not require further
assistance. Wensch v. Principi, 15 Vet App 362 (2001); Dela
Cruz; see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not
required to provide assistance "if no reasonable possibility
exists that such assistance would aid in substantiating the
claim").
The Board finds that the VA has satisfied both the notice and
duty to assist provisions of the law. 38 U.S.C.A. §§ 5103,
5103A; 38 C.F.R. § 3.159.
ORDER
The claim for an increased rating for bilateral pes planus is
denied.
____________________________________________
CONSTANCE B. TOBIAS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs